Opinion of the Court. tion, was overruled and exceptions thereto taken. Thereupon the court rendered judgment in favor of plaintiff and against defendant, to which action of the court defendant excepted, and the case is brought here for review. No motion for a new trial was ever filed, and therefore this court cannot consider the action of the court in overruling defendant's demurrer to the evidence. As such a demurrer raised the question of the legal sufficiency of the evidence to prove the issue of fact in support of which it was offered, an order sustaining it is a decision by the court occurring at the trial, within the meaning of section 5825, Comp. Laws 1909. This section is an exact counterpart of section 306, c. 80, Gen. Stat. Kan. 1868, and section 5202, Gen. Stat. Kan. 1905, and is one that has received frequent interpretation by the Supreme Court of that state, both before and subsequent to the time of its adoption in the territory of Oklahoma. In Gruble v. Ryus et al., 23 Kan. 195, it was held that a demurrer to the evidence and a ruling thereon was merely one step in the progress of the trial, and that such a ruling is a decision occurring at the trial, made during the progress of the trial. In Pratt v. Kelley, 24 Kan. 111, the trial was before the court, as here, and that fact was emphasized to show that the reasoning in Gruble v. Ryus, supra, was not controlling. The court held otherwise, and said: "The court renders the same judgment on sustaining a demurrer to evidence, whether a jury has been impaneled or not. A trial proceeds in all respects, so far as applicable, in the same manner when the submission is to the court as when a jury is sworn; therefore the case of Gruble v. Ryus, supra, is in point." This rule was followed in Norris v. Evans, 39 Kan. 668, 18 Pac. 818; Lott v. K. C., Ft. S. & G. R. Co., 42 Kan. 293, 21 Pac. 1070. In Coy v. Mo. Pac. Ry. Co., 69 Kan. 321, 76 Pac. 844, it was said that a demurrer to the evidence raised the question of the legal sufficiency of the evidence to prove the issue of fact in support of which it was offered, and an order sustaining it is a decision by the court occurring at the trial, within the meaning of the statute, and that a ruling of the trial court, sustaining at Ardmore Oil & Milling Co. v. Doggett Grain Co. demurrer to the evidence, could not be reviewed on appeal, in the absence of a motion for a new trial. Other cases following the same rule are Buoy . Clyde Mil. & El. Co., 68 Kan. 436, 75 Pac. 466; Darling v. A., T. & S. F. Ry. Co., 76 Kan. 893, 93 Pac. 612, 94 Pac. 202; Hartwell v. Loveland, 78 Kan. 259, 97 Pac. 432; Heinz v. Consumers' Light, Heat & Power Co., 81 Kan. 261, 105 Pac. 527. The question has been squarely passed upon by this court in Stump v. Porter et al., 31 Okla. 157, 120 Pac. 639. There' the trial was before a jury, and at the conclusion of the plaintiffs' evidence defendant demurred thereto; the demurrer was overruled and exceptions taken. The action of the court in this regard was attempted to be brought before this court on appeal. Referring to the alleged error, the court said: "They are not available to him, however, for the reason that he failed to file, have considered, and passed upon, any motion for a new trial, and the well-established rule is that the ruling on a demurrer to the evidence is a decision occurring on the trial; and, in order to enable the Supreme Court to review such ruling, it is necessary that a motion for a new trial be made and filed within the time prescribed by law." We therefore conclude as did the court in Stump v. Porter et al., supra, that, no motion for a new trial being filed, the action of the court in overruling the demurrer to the plaintiff's testimony is not properly before us, and that the action thereon cannot be reviewed in this court. Other errors are assigned in the brief of plaintiff in error, but, not being argued, will be deemed to have been waived. For the reasons stated, the judgment of the trial court should be affirmed. By the Court: It is so ordered. Flesher v. Callahan et al. FLESHER v. CALLAHAN et al. No. 1604. Opinion Filed March 12, 1912. (122 Pac. 489.) 1. ADVERSE POSSESSION-Elements-Hostile Character of Possession-Vendor and Purchaser. By the execution and delivery 2. 3. 4. 5. 6. of a deed in general terms, the entire legal interest in the premises vests in the grantee; and, if the grantor continues in possession afterward, his possession will be that either of tenant or trustee of the grantee. He will be regarded as holding the premises in subserviency to the grantee; and nothing short of an explicit disclaimer of such a relation and a notorious assertion of right in himself will be sufficient to change the character of his possession. (a) In such case, the grantor is not deemed, in law, to have adverse possession against his grantee, or those deriving title from him. The doctrine ADVERSE POSSESSION-Evidence-Sufficiency. SAME-Elements in General. A possession, to be adverse, must be open, visible, continuous, and exclusive, with a claim of ownership, such as will notify parties seeking information upon the subject that the premises are not held in subordination to any title or claim of others, but against all titles and claimants. CHAMPERTY AND MAINTENANCE-Conveyance of Land Held Adversely. Where land conveyed, though not in the possession of the grantor, is not held adversely by the occupant, the deed is valid. PLEADING — Verification - Necessity. Comp. Laws 1909, sec. 5648, providing that allegations of the execution of written instruments and indorsements thereon shall be taken as true, unless the denial thereof be verified by affidavit, requires the verification of denial of the execution of the instrument only, and not of the authority of the person by whom it was executed. SAME-Demurrer to Evidence-Effect. A demurrer by defendant to the evidence admits the truth of all the evidence offered on the part of plaintiff, together with such inferences and conclusions as may reasonably be drawn therefrom. (Syllabus by Sharp, C.) Flesher v. Callahan et al. Error from District Court, Okfuskee County; Action by M. B. Flesher against Benton Callahan and another. Judgment for defendants, and plaintiff brings error. Reversed and remanded. C. B. Connor and W. A. Huser, for plaintiff in error. J. B. Patterson and C. W. Brewer, for defendants in error. Opinion by SHARP, C. Plaintiff sued defendants for the recovery of one quarter section of land in Okfuskee county, and for damages for withholding the possession thereof. At the conclusion of the plaintiff's testimony, the defendants interposed a demurrer, which was sustained, and judgment thereupon rendered for defendants. The only question presented is whether or not the demurrer to the evidence was properly sustained. That Billy Yahola was the original owner of the land appears to have been conceded. Plaintiff's title was by mesne conveyances, offered in evidence as follows: Billy Yahola and wife, Winnie Yahola, warranty deed, dated August 31, 1907, to Green A. Fewell; consideration, $3.200. This deed, duly executed and acknowledged, was placed of record in the office of the deputy clerk and er officio recorder of deeds at Okmulgee, in the then Indian Territory, on the day of its execution. Quitclaim deed from Green A. Fewell to S. M. Wilson, dated November 12, 1909, consideration, $1, duly signed and acknowledged and placed of record at Okemah, Okfuskee county, November 15, 1909. Warranty deed from S. M. Wilson and wife, Flora Wilson, to M. B. Flesher, dated November 20, 1909, consideration $2,100, duly signed and acknowledged and placed of record, November 22, 1909. On cross-examination, plaintiff testified that F. B. Dale was in possession of the lands sued for during the year 1909 as tenant of defendants, and that defendants were in possession, both at the time the deed was made from Fewell to Wilson and from Wilson to plaintiff. Counsel for defendants urge that, neither Wilson Opinion of the Court. nor Fewell having been in possession when their deed was made and not having been in possession or collected rent for more than a year, both of said deeds were void as to defendants, and cite Huston v. Scott, 20 Okla. 142, 94 Pac. 512, 35 L. R. A. (N. S.) 721, in support of their contention. Counsel have overlooked the fact that the rule announced in the above case applies only to persons holding adversely to the owner thereof. It was there said by Dunn, J.: "For the deed in this case is not void as between the grantor and grantee, nor due to any disability of either the former to make the transfer, or the latter to take the title. The disability does not lie there, but is inherent in the condition of the land itself, which being held adversely under color of title, the conveyance thereof is void as against such occupant. It is a transfer of land in adverse possession, against which the statute animadverts; but the deed made between the parties is good as between them and to all the world." * * * Adhering to the former opinion of this court in the foregoing case, it was held, in the syllabus of Powers et al. v. Van Dyke et al., 27 Okla. 27, 111 Pac. 939: "St. Okla. 1895, sec. 2026 (Wilson's Rev. & Ann. St. 1903, sec. 2112; Comp. Laws 1909, sec. 2215), making a misdemeanor the buying or selling of any pretended right or title to land, where the grantor or those by whom he claims have not been in possession or taken the rents and profits thereof for the space of one year before such conveyance, is declaratory of the common law, and a conveyance of land, made in contravention thereof by the rightful owner, as against the person holding adversely, is void." To bring the case within the prohibition of the statute construed in the foregoing opinions, what proof, then, is there of an adverse holding, whether under color of title or not? Can it be said that, because defendants were in possession of the land on the date of both the Fewell and Wilson deeds, we must therefore presume that they were in adverse possession, within the meaning of the statute? "Possession, to be adverse, must be open, visible, continuous, and exclusive, with a claim of ownership, such as will notify parties seeking information upon the subject that the |